Look who's talking: the ADA's interactive process
by Audra K. Hamilton
One of your employees approaches you with a note from her
doctor saying that she suffers from carpal tunnel syndrome and can't
perform repetitive tasks for more than a few hours a day. Because her
job requires quite a bit of repetitive motion, she probably will be
unable to perform it. What are your duties at this point? Can you send
her home? Or do you have to search for another job for her?
When an employee comes to you about a disability and difficulty with job
performance, listen to his complaints.
Ask him if he's aware of any reasonable accommodations that could be made to
help him perform the essential functions of his current job.
Look at openings in other departments: Are there any other positions to
which he could be transferred?
Examine your existing policies and procedures. Would any of them cause the
employee to believe that engaging in the interactive process would be futile?
Above all else, keep the lines of communication open. You can't fix problems
that you don't know about.
As the following article shows, the ADA requires you to engage in an
"interactive process" with disabled employees to determine if any reasonable
accommodations will allow them to remain employed. Failing to talk to an
employee about those options could subject your company to liability under the
The ADA prohibits you from
discriminating against qualified individuals with disabilities because of their
disability. "Disability" is defined as a physical or mental impairment that
substantially limits one or more of the employee's major life activities, a
record of such an impairment, or being regarded as having such an impairment. A
"physical or mental impairment" is any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of the body's
systems or any mental or psychological disorder.
A "qualified individual
with a disability" is a person with a disability who can perform the essential
functions of a job with or without reasonable accommodation. The "essential
functions" of a job are its fundamental job duties. Its marginal functions
aren't included. If a disabled employee can't perform the essential functions of
his job, then you must consider whether you can offer any kind of reasonable
accommodation that would allow him to perform them.
Under federal regulations, it may be necessary to
initiate an informal interactive process with a disabled employee when
determining whether reasonable accommodations are possible. The regulations
further describe the interactive process as a procedure to identify the precise
limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations. In other words, you must
talk to the disabled employee about what options are available. According to
many courts, the interactive process isn't optional, and employers have been
found liable under the ADA for failing to participate in it.
has the first (and last) word?
When do you know when it's time
to engage in the interactive process? When the employee tells you he's disabled?
When he indicates that his disability will prevent him from performing his job?
Who has the first word?
The Tenth U.S. Circuit Court of Appeals (the
appeals court for Oklahoma federal courts) has provided a general answer to that
question: The employee has the initial burden of initiating the process by
proposing an accommodation and showing it's reasonable. Hiding behind your
employee's failure to say the magic words "May I have a reasonable
accommodation, please," may not be the best strategy to avoid litigation and
other human resources problems.
But the Tenth Circuit's general rule has
many possible exceptions. For example, if your company is a large one with many
workable accommodations or reassignment options that the employee couldn't be
aware of, you can't rest on the excuse that he didn't give you a possible
accommodation or reassignment option. Or suppose that your company has a policy
against reassignment or transfers into another division. Your policy has made
any request for a reassignment futile, so you can't expect the burden to be on
the employee to initiate a discussion about a reasonable accommodation. The
Tenth Circuit has said that in that situation, you may be liable if the
interactive process doesn't occur.
So, as an employer, you should have
the first word in the interactive process. When your employee alerts you to
difficulties she's having in performing her job because of a disability, talk to
her. Find out what her problems are, whether you can alter nonessential
functions of her job to accommodate her, and what her general complaints are.
Perhaps your company simply cannot accommodate her reasonably. But you can't
reach that conclusion until you've actually engaged in the interactive process.
Having the initial say may insulate you from liability for failing to
engage in the interactive process. Just recently, a Pennsylvania trial court
overturned a $1.5 million ADA verdict in favor of an employee because her
employer had repeatedly talked to her and attempted to provide accommodations
for her Crohn's disease.
This strategy is good from a human resources
standpoint, too. It's always wise to make a good-faith effort to communicate
with your employees.
Copyright 2001 M. Lee Smith Publishers LLC. This article is an excerpt from OKLAHOMA EMPLOYMENT LAW LETTER. OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.
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